The Gauhati High Court directed to seek statutory remedy in the absence of documents in the writ petition to substantiate the mismatch between Tax Deducted at Source (TDS) and Form 26AS.
It was submitted by the responded that in the writ petition, the petitioner has suppressed material facts that he was served with a notice dated 08.09.2020 and reminder dated 16.09.2020 to furnish certain documents, but the petitioner had failed to submit the same, which has been mentioned in the said demand –cum- show cause notice.
It was submitted that the contract work otherwise carries an incidence of service tax and therefore, if any service fell in the exempted category, the assessee had to disclose those relevant facts and then claim exemption from service tax liability.
Per contra, the counsel for the petitioner, while opposing the preliminary issue of maintainability, has submitted that in this case, the petitioner had provided construction service to Engineering Projects (India) Ltd. for the construction of 5 (five) numbers of bailey bridge, which were exempted from service tax liability.
It was evident that the petitioner had not filed his service tax return and also did not disclose his gross contractual dues receipt or disclosed service tax component which is exempt from the incidence of service tax.
The Court observed that the materials available in the writ petition are insufficient for the Court to prima facie satisfy itself that the petitioner had produced the proof before respondent no. 2 that all receipts for which TDS is shown to have been deducted as per Form 26AS were against contractual dues received from Engineering Projects (India) Ltd., in respect of construction works undertaken for construction of 10 nos. of bailey bridges and that service component is exempt from incidence of service tax.
In Punjab National Bank v. O.C. Krishnan, (2001), it was held that “the order which was passed by the Tribunal directing the sale of mortgaged property was appealable under Section 20 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (‘the Act’). The High Court ought not to have exercised its jurisdiction under Article 227 in view of the provision for alternative remedy contained in the Act.
The Court comprising Justice Kalyan Rai Surana is of the considered opinion that as the writ petition does not disclose any documents by which prima facie satisfaction can be recorded that all receipts for which TDS was deducted which is reflected in Form 26AS are entitled to exemption.
As an alternative and efficacious remedy is available to the petitioner, the Court is not inclined to entertain this writ petition and dismissed the writ petition challenging the legality of the impugned order.
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